2. The issue which arises for consideration in this appeal is
whether the post of Boiler Overhauling Mechanic is equivalent to that
of the post of Boiler Mistry or Fitter so as to enable the workman,
respondent herein to draw higher pay scale than what is being given
to him. There is no dispute with regard to the fact that the post of
Boiler Overhauling Mechanic is a different post than that of the post of
Boiler Mistry which is equivalent to that of Fitter in `Skilled - A'
Category.

2

3. The workman, respondent herein was appointed as coolie in the
service of the appellant Board with effect from 1.4.1969 in the pay
scale of Rs. 55-90. He was thereafter designated as Helper in the
same pay scale of coolie and worked in the said post till 13.9.1977.
Thereafter he appeared before the Selection Committee No. 2 for
being promoted to the post of Boiler Overhauling Mechanic. In the
said selection, by order dated 13.9.1977 the respondent was declared
successful consequent upon which he was offered the post of Boiler
Overhauling Mechanic in the then pay scale of Rs. 80-145. The
aforesaid pay scale, however, has been revised with the passage of
time. He joined the duties of Boiler Overhauling Mechanic on
14.9.1977 and since then he performed his duties accordingly. It is
stated that he was also looking after the work of Fitter in addition to
the work of Boiler Overhauling Mechanic. In terms of the policy his
employment in the Board was confirmed as against the post of coolie
with effect from 1.4.1976 under order issued by the competent
authority on 14.9.1978.

4. The allegation was that one Shri Jogeshwar Prasad, who was
working at Sohawal Power House, Faizabad as Boiler Mistry was
given the status of `Skilled-A' worker and was given the pay scale of
3
Rs. 150-285 with effect from 1.4.1969. The respondent-workman
claimed that the same pay scale which has been given to Jogeshwar
Prasad should also be given to him. In terms thereof he raised an
industrial dispute contending inter alia that since the work of Boiler
Overhauling Mechanic and Boiler Mistry are identical and the nature
and responsibilities are also similar, he is entitled to get the same pay
scale on the principle of equal pay for equal work. He claimed that his
pay should be fixed in the pay scale of Rs. 150-285 with effect from
1.4.1977, as revised from time to time.

5. The aforesaid industrial dispute raised by the Union on behalf of
the respondent-workman was referred to the Tribunal for adjudication
under the following terms:

"Whether the employers should give pay scale of Skilled
Category -A to Shri Aziz Ahmad, son of Shri Rashid
Mohammad, Boiler Overhauling Mechanic? If yes, then
from which date and with what other details?"

6. The Tribunal, on receipt of the aforesaid reference, issued
notices to the parties upon which the parties appeared and filed their
respective pleadings. The evidence was also led by the parties by
producing witnesses in support of their case. The Tribunal, after
4
hearing the parties, passed an award on 17.2.1999 holding that the
work being done by the workman Aziz Ahmad as Boiler Overhauling
Mechanic is the same as the work of Fitter and that the pay scale of
the posts of Boiler Mistry and the fitter was Rs. 150-285 and that on
the settled principle of equal pay for equal work, workman Aziz Ahmad
is entitled to the same pay scale as that of the Fitter. The Tribunal
held that the said workman Aziz Ahmad would be entitled to the pay
scale of `Skilled-A' category as admissible to Fitter with effect from
14.9.1977, but however, as he appeared before the Conciliation Board
in 1989, it was held that he would be entitled to the benefit of the
aforesaid pay scale only with effect from 1.1.1989.

7. Being aggrieved by the aforesaid award passed by the Industrial
Tribunal, the appellant Board preferred a writ petition in the High Court
of Allahabad which was entertained and was heard on merit. The
learned Single Judge by his judgment and order dated 27.10.2005
dismissed the writ petition holding that no interference was called for.
It was held by the learned Single Judge that the Tribunal rightly came
to the conclusion that the workman had actually worked as Boiler
Mistry and had discharged superior functions of the post which was
equal to that of Fitter.

5

8. The appellant being aggrieved by the order passed by the
learned Single Judge and award passed by the Tribunal filed the
present appeal on which notice and stay order were issued.
Consequent thereupon this appeal was listed for hearing.

9. Mr. Pradeep Misra, learned counsel appearing for the appellant
Board submitted before us that the respondent-workman was made
aware of his status and position through the appointment letter issued
to him making it clear that he had been appointed to the post of Boiler
Overhauling Mechanic in the pay scale of Rs. 80-145 which he
accepted and had also received all the benefits on the basis of the
said pay scale. It was submitted that having accepted the aforesaid
position the respondent cannot turn back and claim for change in his
pay scale on the ground of equal pay for equal work. It was also
submitted by him that the duties and responsibilities attached to the
post of Fitter or Boiler Mistry are much more higher than that of the
duties and responsibilities attached to the post of Boiler Overhauling
Mechanic, and therefore, the Tribunal as also the learned Single
Judge were not justified in holding that the duties and responsibilities
of the aforesaid posts are similar.

6

It was further submitted that there is no evidence or material
placed on record to substantiate that duties and responsibilities
attached with the post of Fitter or Boiler Mistry are similar and identical
in all respects to that of the duties and responsibilities attached to the
post of Boiler Overhauling Mechanic and in absence of clear evidence
in that regard it was inappropriate on the part of both the learned
Single Judge of the High Court as also of the learned Industrial
Tribunal to pass an award in favour of the workman.

10. Mr. A.P. Mohanty, learned counsel appearing for the
respondent-workman, however, sought to justify both the award as
also the judgment and order of the learned Single Judge upholding the
award contending inter alia that from the pleadings of the parties and
depositions recorded by the Labour Court, if it is possible to come to
the conclusion that both the posts carry the same duties and
responsibilities or identical responsibilities and status, then the
Tribunal could have and accordingly has rightly passed the award in
favour of the workman.

11. In order to appreciate the aforesaid contentions we have
carefully scrutinised the records including the documents and the
7
depositions. We have carefully analysed the findings recorded by the
Tribunal in paragraph 12 of the award. In the said paragraph the
Tribunal recorded that the issue to be determined is whether the
workman Aziz Ahmad is doing similar work as that of the work of Fitter
or Boiler Mistry.

12. Having framed the aforesaid issue for consideration, the
Tribunal immediately went on to record a finding that it was
unfortunate that none of the parties had filed an objective data with
regard to the work assessment of the aforesaid posts. The learned
Tribunal put the burden on the employer to record the job
requirements of the aforesaid posts and to prove and establish that
they are not identical. The aforesaid findings of the learned Tribunal
were also upheld by the learned Single Judge.

13. In our considered opinion the aforesaid findings are incorrect
and cannot be upheld. The burden to prove a particular fact is
always on the person who alleges the same. In the present
case it was the contention of the respondent-workman, who
claimed that the job requirements, nature and responsibilities of
the post of Boiler Mistry/Fitter are identical and similar with that
8
of the Boiler Overhauling Mechanic. The burden, therefore, was
on the workman to prove and establish the aforesaid facts by
leading cogent and reliable evidence. He was required to place
documentary evidence in support of the same.

14. The principle that the burden of proof is on a person who alleges
it has been reiterated by this Court innumerable times. For
reference we may extract the following passages from the
judgment of this Court in State of M.P. v. Pramod Bhartiya,
[(1993) 1 SCC 539]:

"13...............It must be remembered that since the plea
of equal pay for equal work has to be examined with
reference to Article 14, the burden is upon the petitioners
to establish their right to equal pay, or the plea of
discrimination, as the case may be. This burden the
original petitioners (respondents herein) have failed to
discharge."

"9................ Further, the Tribunal and the High Court
proceeded as if it was the employer who was to show that
there was no equality in the work. On the contrary, the
person who asserts that there is equality has to prove it.
The equality is not based on designation or the nature of
work alone. There are several other factors like
responsibilities, reliabilities, experience, confidentiality
9
involved, functional need and requirements commensurate
with the position in the hierarchy, the qualifications required
which are equally relevant."

"19......In any event, the party who claims equal pay for
equal work has to make necessary averments and prove
that all things are equal. Thus, before any direction can be
issued by a court, the court must first see that there are
necessary averments and there is a proof......."

20.........In each case the court must satisfy itself that the
burden of proving that the work and conditions are equal is
discharged by the aggrieved employee"

15. The Tribunal as also the High Court while affirming the award
changed the rule of the game by placing the entire burden of
proof on the management that the posts are not identical.
Whether the aforesaid posts are identical and whether the
persons holding the post of Boiler Overhauling Mechanic, Boiler
Mistry or Fitter are doing identical or similar nature of work and
discharge the same functions and responsibilities are required to
be adjudicated upon and decided by making an analysis of their
nature of duties, responsibilities, pay scales and other factors
which are required to be considered for deciding such an issue.
10
This Court in a number of decisions has laid down the guiding
factors and principles as to how the issue with regard to
equation of posts is to be considered and analyzed. In Secy.,
Finance Deptt. v. W.B. Registration Service Assn., 1993
[Supp (1) SCC 153] this Court enumerated the factors to be
taken into consideration for job evaluation:

"12. We do not consider it necessary to traverse the case
law on which reliance has been placed by counsel for the
appellants as it is well settled that equation of posts and
determination of pay scales is the primary function of the
executive and not the judiciary and, therefore, ordinarily
courts will not enter upon the task of job evaluation which is
generally left to expert bodies like the Pay Commissions,
etc. But that is not to say that the Court has no jurisdiction
and the aggrieved employees have no remedy if they are
unjustly treated by arbitrary State action or inaction. Courts
must, however, realise that job evaluation is both a difficult
and time consuming task which even expert bodies having
the assistance of staff with requisite expertise have found
difficult to undertake sometimes on account of want of
relevant data and scales for evaluating performances of
different groups of employees. This would call for a
constant study of the external comparisons and internal
relativities on account of the changing nature of job
requirements. The factors which may have to be kept in
view for job evaluation may include (i) the work programme
of his department (ii) the nature of contribution expected of
him (iii) the extent of his responsibility and accountability in
the discharge of his diverse duties and functions (iv) the
extent and nature of freedoms/limitations available or
imposed on him in the discharge of his duties (v) the extent
of powers vested in him (vi) the extent of his dependence
on superiors for the exercise of his powers (vii) the need to
co-ordinate with other departments, etc. We have also
11
referred to the history of the service and the effort of
various bodies to reduce the total number of pay scales to
a reasonable number. Such reduction in the number of pay
scales has to be achieved by resorting to broadbanding of
posts by placing different posts having comparable job
charts in a common scale. Substantial reduction in the
number of pay scales must inevitably lead to clubbing of
posts and grades which were earlier different and unequal.
While doing so care must be taken to ensure that such
rationalisation of the pay structure does not throw up
anomalies. Ordinarily a pay structure is evolved keeping in
mind several factors, e.g., (i) method of recruitment, (ii)
level at which recruitment is made, (iii) the hierarchy of
service in a given cadre, (iv) minimum educational/technical
qualifications required, (v) avenues of promotion, (vi) the
nature of duties and responsibilities, (vii) the horizontal and
vertical relativities with similar jobs, (viii) public dealings, (ix)
satisfaction level, (x) employer's capacity to pay, etc. We
have referred to these matters in some detail only to
emphasise that several factors have to be kept in view
while evolving a pay structure and the horizontal and
vertical relativities have to be carefully balanced keeping in
mind the hierarchical arrangements, avenues for
promotion, etc. Such a carefully evolved pay structure
ought not to be ordinarily disturbed as it may upset the
balance and cause avoidable ripples in other cadres as
well. It is presumably for this reason that the Judicial
Secretary who had strongly recommended a substantial
hike in the salary of the Sub-Registrars to the Second
(State) Pay Commission found it difficult to concede the
demand made by the Registration Service before him in his
capacity as the Chairman of the Third (State) Pay
Commission. There can, therefore, be no doubt that
equation of posts and equation of salaries is a complex
matter which is best left to an expert body unless there is
cogent material on record to come to a firm conclusion that
a grave error had crept in while fixing the pay scale for a
given post and Court's interference is absolutely necessary
to undo the injustice."

12

16. Moreover in Gyan Prakash v. Union of India [(1997) 11 SCC
670] it was held that application of the principle of equal pay for
equal work cannot be claimed merely because there was
delegation of certain powers. The ratio of the aforesaid decision
is applicable to the facts of the present case as the claim of the
Respondent for a higher pay scale is also on the ground that he
was discharging the duties of a higher post also, without
however, giving any factual details in that regard.

17. Being conscious of the aforesaid legal position we are of the
considered opinion that the learned Industrial Tribunal
committed a manifest error of law and of fact initially by placing
the burden on the employer to prove and establish the job
requirements of the said three posts, and thereafter, again
committed an error in coming to the conclusion that the posts
are identical on the basis of the pleadings of the parties alone.
Pleadings are required to be proved and so long evidence is not
led in support of the pleadings no reliance can be placed only on
the pleadings without there being any cogent evidence in
support of the pleadings. Pleadings are required to be proved
by leading evidence. The Tribunal expressly stated in its
13
findings that none of the parties have filed any objective data in
regard to the work assessment of the posts of Boiler
Overhauling Mechanic, Boiler Mistry or Fitter. In absence of
such evidence the Tribunal was not justified in coming to a
conclusion that the nature, duties and responsibilities of the
three posts are identical and similar.

18. Therefore, we have no other option but to remand this matter to
the Industrial Tribunal for fresh adjudication in accordance with
law. We, however, allow the parties an opportunity to lead
further evidence in support of their claims and counter claims
regarding the status and position of the aforesaid three posts.
The Tribunal should see to it that the claims and the rebuttal of
the said claim should be supported by cogent and reliable
evidence. For that matter the Tribunal shall render an
opportunity to the parties to lead their evidence in support of
their case and on the basis of the records, as available, the
Tribunal would decide afresh the issue whether the nature,
duties and responsibilities of the said three posts are identical,
and thereafter, the Tribunal should answer the reference.
14

19. Consequently, we set aside both the award passed by the
Tribunal as also the judgment passed by the learned Single
Judge and remit back the matter to the Industrial Tribunal for
decision in terms of the aforesaid observations. It is needless to
say that since it is an old matter, the Tribunal should render a
priority in hearing of this matter and would make all endeavour to
decide the matter, preferably within a period of six months.